State v. Pachel

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellant, v. HENRY J. PACHEL, Appellee. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0555 DIVISION ONE FILED: 04-20-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P-1300-CR-0000970111 The Honorable Howard D. Hinson, Judge (Retired) APPEAL DISMISSED FOR LACK OF JURISDICTION Sheila Sullivan Polk, Yavapai County Attorney By Dennis M. McGrane, Deputy County Attorney Attorneys for Appellant DeRienzo and Williams PLLC By Daniel J. DeRienzo Attorneys for Appellee Prescott Prescott Valley D O W N I E, Judge ¶1 The State appeals the superior court s determination that Henry J. Pachel need not continue sex offender registration after being discharged from probation. For the following reasons, we conclude that we lack jurisdiction and thus dismiss this appeal. FACTS AND PROCEDURAL BACKGROUND ¶2 In 1997, Pachel pled guilty to two counts of sexual conduct with a minor in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1405 (2010), both class 6 felonies. June 2, 1997, probation. he was sentenced to five years of supervised The written Conditions of Probation ordered Pachel to REGISTER AS A SEX OFFENDER DURING TERM OF PROBATION. minute entry register Pachel On as from a the sex successfully sentencing offender hearing during completed the directed Pachel The to of probation. and probation term was discharged effective June 2, 2002. ¶3 On March 18, 2009, Pachel filed Successfully Terminate Sex Registration. 1 a Request to Pachel argued, inter alia, that the court had ordered him to register only during his term of probation, which had expired. The State opposed the motion, arguing that, once imposed, sex offender registration under A.R.S. § 13-3821 (2010) is a lifelong obligation. replied that the State had waived any challenge Pachel to his sentencing terms by failing to object or appeal and that he was simply asking [the] Court to enforce its order. 1 According to defense counsel s statements in the superior court, the probation department and the sheriff s office advised Pachel he must maintain lifetime sex offender registration. 2 ¶4 At the hearing on Pachel s motion, defense counsel reiterated that he was not asking the court to modify the terms of probation terms. or sentence, but to enforce previously ordered He argued the State had waived any challenge to the legality of Pachel s sentence by failing to object or appeal in 1997. After considering the parties arguments, the court stated: I made a determination registration should be for the term of probation at the time of Mr. Pachel s sentence. court indicated it would grant Pachel s motion for The what I believe is an order reconfirming that this Court meant what it said in its 1997 sentencing order, that registration would be for the term of his probation only. In a subsequent minute entry, the court stated: For the reasons as stated on the record, the Court GRANTS the Defendant s motion for order confirming that his sex offender registration requirement was to be for the term of the Defendant s probation only. (Emphasis added.) The court signed an order submitted by defense counsel (the 2009 order ), which stated, in pertinent part: The Court finds that in 1996, at the time of the offense, the law did not require lifetime registration . . . and therefor, [sic] the sentencing provision stating that the Defendant shall register as a sex offender during the term of probation was not and is not an illegal sentence. While case law suggests that lifetime registration was not unconstitutional in 1997 . . . the 3 Court finds that lifetime registration was not required by A.R.S. 13-3821 in 1997 . [sic] The Court further finds that the state did not object to the judgment and sentence at the time of sentencing in 1997 nor was there reference to a length of the term of registration in the plea agreement. The State filed a timely notice of appeal from the 2009 order. DISCUSSION ¶5 Pachel challenges this Court s jurisdiction, arguing the State failed to timely appeal the 1997 sentence and cannot establish how the 2009 order affects its substantial rights. We agree. ¶6 This court has jurisdiction direct appeals authorized by statute. to consider only those See Ariz. Const. art. 6, § 9; Ariz. Rev. Stat. ( A.R.S. ) § 12-120.21(A)(2003); State v. Jimenez, 188 Ariz. 342, 344-45, 1996). The State cites A.R.S. 935 § P.2d 13-4032(4) explaining how it authorizes this appeal. 2 the State to appeal 920, post-judgment 922-23 (2010), (App. without That statute permits orders affecting the substantial rights of the state or a victim, except that the state shall only take an appeal on an order affecting substantial rights of a victim at the victim's request. § 13-4032(4). the A.R.S. The State does not suggest its appeal was filed 2 The State did not file a reply brief addressing the jurisdictional challenges raised in Pachel s answering brief. 4 at a victim s request. We therefore construe the State s jurisdictional citation as a reference to a post-judgment order affecting the substantial rights of the state. See A.R.S. § 13-4032(4). ¶7 The order. State frames its appeal as one from the 2009 The superior court, however, issued the 2009 order to reconfirm[] that this Court meant what it said in its 1997 sentencing order, that registration would be for the term of his probation only. of probation The 1997 sentencing minute entry and the terms required Pachel to register as a sex offender during the term of probation. Although the superior court understandably in could not recall 2009 why it made this specific pronouncement in 1997, because it was out of the ordinary, the court believed it was a purposeful determination on [the court s] part. 3 3 At the time of sentencing, the superior court had before it a risk assessment of Pachel. That assessment found little chance of [Pachel] re-offending if he continued in personal and marital counseling and did not himself act as a counselor or therapist to others. The evaluator further stated: Under these circumstances he is highly likely to be successful in his probation, which I understand is to be a minimum of three years duration. Apparently he is obliged to register as a sex offender under the current statute for this violation. Perhaps the requirement that he be so registered might end at the period of his probation. 5 ¶8 On this record, we conclude that the 2009 order does not affect substantial rights of the State, as is necessary for appellate jurisdiction. See Jimenez, 188 Ariz. at 345, 935 P.2d at we 923 (holding that had no jurisdiction to consider defendant s direct appeal of post-judgment order denying motion to modify terms of probation because it did not change sentence, and accordingly, did not affect defendant s substantial rights). The 2009 order simply affirmed the 1997 sentencing terms, which required sex offender registration for a finite term. 4 CONCLUSION ¶9 For the reasons stated, we dismiss this appeal for lack of jurisdiction. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge (Emphasis added.) 4 In its opening brief, the State argues that the state of the law in 1996 was lifetime registration and that lifetime registration has been the rule since the inception of sex offender registration in Arizona, with limited exceptions. Even assuming arguendo that the State is correct, it did not appeal the sentence it now claims was illegal from its inception. 6

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